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Brownlee v. District of Columbia Dep't of Health

September 3, 2009

GEORGE BROWNLEE, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH, BOARD OF PHYSICAL THERAPY, RESPONDENT.



Petition for Review of a Decision of the District of Columbia Department of Health Board of Physical Therapy.

The opinion of the court was delivered by: Reid, Associate Judge

Argued June 16, 2009

Before WASHINGTON, Chief Judge, and REID and KRAMER, Associate Judges.

Petitioner, George Brownlee, petitions for review of a decision by the District of Columbia Board of Physical Therapy ("the Board"). The Board found him liable for his failure to review and co-sign a physical therapy assistant's documentation, or to assign another physical therapist to perform the tasks required by 17 DCMR § 6710.12 (1990). Mr. Brownlee contends that the Board exceeded its authority, and its findings and conclusions are not based on substantial evidence. We affirm the decision of the Board because (1) the Board's construction of its regulations was reasonable and requires deference; and (2) the Board's decision is based on substantial record evidence.

FACTUAL SUMMARY

The record shows that the Health Professional Licensing Administration ("HPLA"), Board of Physical Therapy, received a referral report from the District of Columbia Department of Health, Health Regulation and Licensing Administration ("HRLA") concerning patient records signed by a physical therapist assistant but lacking the required signature of a licensed physical therapist. HPLA assigned its investigation for the Board to Mike Donatelli. The investigation focused on records pertaining to patients of the physical therapy wing of Specialty Hospital. Ergo Solutions, LLC which was co-owned by Mr. Brownlee, a physical therapist, provided physical therapist assistants and physical therapists for the Hospital.

Mr. Donatelli subpoenaed Ergo Solutions' records of physical therapists ("PT") and physical therapist assistants ("PTA"), and conducted a random sampling of several patient files, as well as the files of a patient known as R.D. whose records lacked the counter-signature of a physical therapist. He found several other forms lacking a PT's co-signature.

Chiku Ellen Kankhwende was the PTA on all these forms.*fn1 Ergo Solutions was unable to provide information as to who was designated to supervise Ms. Kankhwende or which PT was on site during the times the reports were filed.

The Board issued a "notice of intent to take disciplinary action" to Mr. Brownlee on November 30, 2007, and an amended notice on January 15, 2008. The amended notice contained two charges:

Charge I: You failed to review and co-sign or assign a physical therapist to review and co-sign the documentation of a physical therapy assistant as required by 17 DCMR § 6710.12 for which the Board may take the proposed action pursuant to D.C. Official Code § 3-1205.14(a)(24)(2001).

Charge II: You failed to conform to the standards of acceptable conduct and prevailing practice within the physical therapy profession, for which the Board may take the proposed action pursuant to violation of D.C. Official Code § 3-1205.14(a)(26)(2001).

Several specifications relating to each charge also appeared in the amended notice. On February 19, 2008, during a hearing before three Board members, three witnesses were called. Mark Donatelli, an employee of the HPLA and the primary investigator concerning this case, testified for the government. Mr. Brownlee testified on his own behalf.*fn2

In a decision dated June 9, 2008, which was based on the testimony, and on the documents admitted into evidence, the ...


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